In Re X, 2017 CanLII 33034 (CA IRB), an important case I missed when it was decided last year, the Refugee Appeal Division of Canada’s Immigration and Refugee Board sat as a three-member panel with a view to setting out general rules as to how the RAD should deal with appeals from the (first-instance) Refugee Protection Division. When sitting as a three-member panel, decisions of the RAD have precedential force (see Immigration and Refugee Protection Act, s. 171(c)).

Here, there was a two-member majority (Bosveld and Atkinson), with one set of concurring reasons (De Andrade).

Pursuant to the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, “a standard of correctness is to be applied to all findings of the RPD, with the exception of those areas where the lower tribunal enjoys a meaningful advantage” (at para. 48). That is to say, the RAD must come to its own conclusions on the merits, but where the RPD has a “meaningful advantage” on an issue, the RPD’s conclusion is entitled to some degree of deference or weight.

In this case, the RAD tried to set out “various types of RPD findings” on which the first-instance body might enjoy a meaningful advantage (at para. 49), for example, issues relating to “inconsistencies, contradictions, and omissions”, “demeanour” and “implausibilities”. It emphasised, quite rightly, that the assessment as to meaningful advantage must be conducted on “on a case-by-case basis” (at para. 47).

As long as these categories are treated as guidelines, there is surely nothing inappropriate in the RAD setting them out in a decision carrying precedential force. Nonetheless, these guidelines should not be allowed to assume the form of rigid categories. Indeed, it is appropriate to insist on describing them as guidelines for the “fear” expressed by De Andrade in her concurring reasons at para. 158 “that talking in generalities or establishing categories could give rise to rigidity where the RAD is concerned”.

More problematic is the majority’s subsequent analysis of “the degree or depth of deference which is appropriate” in such circumstances (at para. 63). Although it is not immediately clear from the analysis at paras. 68-76 what “RAD reasonableness” — the degree of deference owed by the appellate body (RAD) to the first-instance body (RPD) — actually involves, para. 116(d) is intended as a summary:

Where the RAD shows deference to a finding, it will nevertheless consider both the process and the outcome. The finding must be the result of a comprehensible reasoning process – the RAD must be able to read the RPD’s decision and understand how the RPD’s conclusion was reached. In considering the outcome, the RAD must assess whether the finding is based on the evidence in the record; in order to do so, the RAD must undertake an independent assessment of that evidence, which may include re-weighing the evidence as necessary.

If it accurately describes RAD reasonableness, it describes something which is difficult to endorse.

As elaborated here, however, RAD reasonableness does not even ask for “justification, transparency and intelligibility” in the reasoning process. Given the nature of the appeal process, and the RAD’s role as set out in Huruglica, the RAD must surely adopt a much more demanding standard, something like “do the conclusions flow from the facts and premises” or, put another way, “could I [RAD Member] have drawn the same inferences from these facts and reached the same decision based on these premises?”

As to “outcome”, it is not enough in my view to say the RPD decision can be “based on the evidence in the record”. Surely it must be a formulation closer to “a convincing outcome, demonstrated by reference to evidence in the record”. And I would be sceptical of a RAD standard which envisages that its review “may include re-weighing the evidence as necessary.” The word “may” and the phrase “as necessary” are doing a lot of work there, and could be misused. I would prefer to say that the RAD review looks for a “convincing outcome” and will “re-weigh the evidence” to ensure accuracy in all cases.

For me, De Andrade is much closer to the mark at para. 155, when she says that ” the RAD’s approach involves taking a step back in order to better proceed with an independent and careful analysis of the evidence before it in an effort to determine whether the RPD committed an error warranting the RAD’s intervention”. This, it seems to me, is the fundamental point. Her formulation more accurately captures the nature of the deference or weight that the RAD ought to give, in some circumstances, to the RPD.